Key Issues:
- Disclosure Request: Plaintiff sought records from an investigation into his termination. The Defendant claimed privilege over these records.
Records Sought:
- Transcripts and recordings of interviews with Plaintiff and Complainant 1.
- Identity and allegations of Complainant 2.
- Information gathered during the investigation.
Privilege Claims:
- Litigation Privilege: Asserted the investigation was conducted in anticipation of litigation.
- Solicitor-Client Privilege: Asserted the investigation aimed to gather information for legal advice.
Legal Principles:
- Litigation Privilege: Applies if the primary purpose of creating records was for litigation.
- Solicitor-Client Privilege: Covers communications for legal advice, including intermediaries if essential to the lawyer-client relationship.
Court’s Analysis:
- Dominant Purpose Test: The court found no sufficient evidence that the dominant purpose was litigation.
- Solicitor-Client Privilege: The investigation served dual purposes—legal advice and corporate governance under the Respectful Workplace Policy.
Findings:
- Conflicting affidavits from the Defendant about the investigation’s purpose led the court to prioritize the initial affidavit supporting operational purposes.
- Waiver of Privilege: By relying on the investigation findings in its defense, the Defendant waived any privilege over the materials.
Decision:
- The court ordered the disclosure of the investigation records sought by the Plaintiff, excluding the final report.
- No amount specified for costs/awards.
This decision underscores the importance of clear and consistent claims when asserting privilege over investigation records.
